People v. Walker

FOURT, J.

This is an appeal from a judgment of conviction of battery upon a peace officer (§ 242, Pen. Code) and a judgment of conviction of a simple assault (§ 240, Pen. Code).

In an information filed in Los Angeles on January 29, 1968, defendant was charged in count 1 with kidnaping Chaffon Cockrell on November 4, 1967, in count 2 with kidnaping Velma Harvey on November 4, 1967, in count 3 with assaulting Velma Harvey with a deadly weapon on November 4, 1967, and in count 4 with using force and violence upon Officer Antkiewicz who at the time in question was engaged in the performance of his duties. It was further charged that previously, in September 1965, defendant was convicted of the crime of violating section 11530, Health and Safety Code. In a jury trial defendant was found not guilty of the charges set

[253]

forth in counts 1 and 2. He was found guilty of simple assault, a lesser and included offense, as charged in count 3 and guilty as charged in count 4. Defendant admitted the charged prior conviction and was sentenced to the county jail for the term of 30 days as to count 3 and to the state prison as to count 4, the terms to run concurrently. Defendant filed a timely notice of appeal from the judgment.

A résumé of some of the facts is as follows: on November 4, 1967, at about 11 a.m. Velma Harvey and her daughter with a friend were driving Velma’s ear in the City of Los Angeles. Defendant ran across the street towards the car, holding a brick in his hand. He pulled open a car door, got into the car and then drove away. The friend of Velma jumped out of the car leaving defendant, Velma Harvey and her daughter in the vehicle. Defendant struck Velma in the face area and her nose started to bleed. Defendant drove the car to the San Pedro area where he again struck Velma and threatened to drive over a cliff. The daughter of Velma was screaming. Velma saw a police vehicle and screamed for help. Defendant squeezed his hands around Velma’s neck and made breathing difficult.

Officer Antkiewicz of the Harbor Division Patrol of the Los Angeles Police Department was driving a police ear in the Fermín Point Park area in San Pedro and saw and heard Velma screaming for help. The officer turned the police car around and gave chase. Defendant ran Velma’s car up over a curb and onto the grass. Velma jumped out and ran to the officer. She was hysterical and called for help. Her face was swollen and her lips were bloody.